Exhibit 10.15
SECOND AMENDMENT TO CREDIT AGREEMENT
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This SECOND AMENDMENT TO CREDIT AGREEMENT (this "Amendment"), dated as
of April 22, 1998, is by and among RINGER CORPORATION ("Ringer"), SAFER, INC.
('"Safer") and SURECO, INC. ("SureCo") (Ringer, Safer and SureCo are sometimes
referred to herein individually as a "Borrower and collectively as the
"Borrowers") and GENERAL ELECTRIC CAPITAL CORPORATION, a New York corporation,
as Lender.
RECITALS
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A. Borrowers and Lender are parties to that certain Credit Agreement
dated as of May 2, 1997 (as from time to time amended, restated, supplemented or
otherwise modified and in effect, the "Credit Agreement"), pursuant to which
Lender has made and may hereafter make loans and advances and other extensions
of credit to Borrowers.
B. Borrowers wish, and Lender is willing, to amend certain provisions of
the Credit Agreement, all on the terms and conditions set forth in this
Amendment.
C. Pursuant to Section 1.1(b) of the Credit Agreement, Borrowers have
requested an Effective Commitment Increase in the amount of $5,000,000.
X. Xxxxxx desires to effectuate, and Lender is willing to consent to, a
change in its corporate name, all on the terms and conditions set forth in this
Amendment.
E. This Amendment shall constitute a Loan Document and these Recitals
shall be construed as part of this Amendment. Capitalized terms used herein
without definition are so used as defined in Annex A to the Credit Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants hereinafter contained, the parties hereto agree as follows:
1. Consent and Waiver
Lender hereby consents to the corporate name change of Ringer
Corporation to Verdant Brands, Inc. and hereby waives any Default or Event of
Default that may arise as a result thereof. Upon the effectiveness of such name
change and at all times thereafter, all references in the Loan Documents to
"Ringer" and Ringer Corporation shall be deemed to mean Verdant Brands, Inc.
2. Amendment of Credit Agreement.
(a) The definition of "Borrowers" contained in the recitals to the Credit
Agreement is hereby amended to include SureCo therein. In addition, each
reference to "Borrower" or "Borrowers" contained in the other Loan Documents
shall be, deemed to include SureCo therein. By its execution of this Amendment,
SureCo agrees, from and after the date hereof, to be a Borrower under the Credit
Agreement and to be liable for all of the Obligations of a Borrower under the
terms of the Loan Documents.
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(b) The Effective Revolving Credit Commitment is hereby increased to
$15,000,000.
(c) Section 3 of the Credit Agreement is hereby amended by adding the
following subsections at the end thereof:
3.26 SRI Acquisition Agreement Ringer has delivered to Lender a
complete and correct copy of the SRI Acquisition Agreement (including all
schedules, exhibits, amendments, supplements, modifications, assignments
and all other documents delivered pursuant thereto or in connection
therewith). No Credit Party and no other Person party thereto is in default
in the performance or compliance with any provisions thereof. The SRI
Acquisition Agreement complies with, and the Dexol Transaction has been
consummated in accordance with, all applicable laws. The Dexol Acquisition
Agreement is in full force and effect and has not been terminated,
'rescinded or withdrawn. All requisite approvals by Governmental
Authorities having jurisdiction over SRI, any other Credit Party and other
Persons referenced therein, with respect to the transactions contemplated
by the SRI Acquisition Agreement, have been obtained, and no such approvals
impose any conditions to the consummation of the transactions contemplated
by the SRI Acquisition Agreement or to the conduct by any Credit Party of
its business thereafter. To the best of each Credit Party's knowledge,
none of SRI's representations or warranties in the SRI Acquisition
Agreement contain any untrue statement of a material fact or omit any fact
necessary to make the statements therein not misleading. Each of the,
representations and warranties given by each applicable Credit Party in the
SRI Acquisition Agreement is true and correct in all material respects.
3.27 SureCo Notes. Ringer has delivered to Lender a complete and
correct copy of each of the Sur~o Notes (including all schedules, exhibits,
amendments, supplements, modifications, assignments and all other documents
delivered pursuant thereto or in connection therewith). The subordination
provisions related to certain of the SureCo Notes are enforceable against
the holders' thereof by Lender. All Obligations, including the Obligations
to pay principal of and interest, on the Revolving Loan and the Letter of
Credit Obligations, constitute senior Indebtedness entitled to the benefits
of such subordination provisions.
(d) Section 6.2(c) of the Credit Agreement is hereby amended by deleting it
in its entirety and replacing it with the following:
(c) Ringer may make Permitted Acquisitions;
(e) Section 6.3 of the Credit Agreement is hereby amended by deleting it in
its entirety and replacing it with the following:
6.3 Indebtedness. (a) No Credit Party shall create, incur, assume or
permit to exist any Indebtedness, except (without duplication):
(i) Indebtedness secured by purchase money security interests
permitted in clause (c) of Section 6.7;
(ii) the Revolving Loan and the other Obligations;
(iii) deferred taxes;
(iv) unfunded pension fund and other employee benefit plan
obligations and liabilities to the extent they are permitted to remain
unfunded under applicable law;
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(v) the Subordinated Note;
(vi) existing Indebtedness described in Disclosure Schedule (6.3) and
refinancings thereof or amendments or modifications thereof which do not
have the effect of increasing the principal amount thereof or changing the
amortization thereof (other than to extend the same) and which are
otherwise on terms and conditions no less favorable to any Credit Party or
Lender, as determined by Lender, than the terms of the Indebtedness being
refinanced, amended or modified;
(vii) Indebtedness specifically permitted under Section 6.1;
(viii) Indebtedness consisting of intercompany loans and advances made
by any Borrower to any other Borrower, provided that (A) each Borrower
shall have executed and delivered to each other Borrower, on the Closing
Date or, if later, the date upon which a Person becomes a "Borrower"
hereunder, a demand note (collectively, the "Intercompany Notes") to
evidence any such intercompany Indebtedness owing at any time by such
Borrower to such other Borrowers, which Intercompany Notes shall be in form
and substance satisfactory to Lender and shall be pledged and delivered to
Lender pursuant to the applicable Pledge Agreement or Security Agreement as
additional collateral security for the Obligations; (B) each Borrower shall
record all intercompany transactions on its books and records in a manner
satisfactory to Lender; (C) the obligations of each Borrower under any such
Intercompany Notes shall be subordinated to the Obligations of such
Borrower hereunder in a manner satisfactory to Lender; (D) at the time any
such intercompany loan or advance is made by any Borrower to any other
Borrower and after giving effect thereto, each such Borrower shall be
Solvent; and (E) no Default or Event of Default would occur and be
continuing after giving effect to any such proposed intercompany loan; and
(ix) the SureCo Notes.
(b) No Credit Party shall, directly or indirectly, voluntarily
purchase, redeem, defease or prepay any principal of, premium, if any,
interest or other amount payable in respect of any Indebtedness, other
than (i) the Obligations and (ii) Indebtedness secured by a Permitted
Encumbrance if the asset securing such Indebtedness has been sold or
otherwise disposed of in accordance with Sections 6.8(b) or (c).
(f) Section 6.4(b) of the Credit Agreement is hereby amended by deleting it
in its entirety and replacing it with the following:
(b) No Credit Party shall enter into any lending or borrowing
transaction with any employees of any Credit Party, except loans to their
respective employees on an arm's-length basis in the ordinary course of
business consistent with past practices for travel expenses, relocation
costs and similar purposes up to a maximum of $100,000 to any employee and
up to a maximum of $300,000 at any one time outstanding in the aggregate
for all Loan Parties.
(g) Section 6.6 of the Credit Agreement is hereby amended by deleting it in
its entirety and replacing it with the following:
6.6 Guaranteed Indebtedness. No Credit Party shall create, incur,
assume or permit to exist any Guaranteed Indebtedness except (a) by
endorsement of instruments or items of payment for
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deposit to the general account of any Credit Party, (b) for Guaranteed
Indebtedness incurred for the benefit of any other Credit Party if the
primary obligation is expressly permitted by this Agreement other than
Indebtedness, if any, of a Target existing at the time such Target is
acquired and (c) Guaranteed Indebtedness summarized on Disclosure Schedule
(6.6).
(h) Section 6.7(b) of the Credit Agreement is hereby amended by deleting it
in its entirety and replacing it with the following:
(b) Liens summarized on Disclosure Schedule (6.7); and
(i) Section 6.8(b) of the Credit Agreement is hereby amended by deleting it
in 'its entirety and replacing it with the following:
(b) the sale, transfer, conveyance or other disposition by a Credit
Party of Equipment, Fixtures, Real Estate or Inventory that are obsolete or
no longer used or useful in such Credit Party's business and having a value
not exceeding $250,000 in any single transaction or $450,000 in the
aggregate in any Fiscal Year for all Credit Parties;
(j) Section 6.8(c) of the Credit Agreement is hereby amended by deleting it
in its entirety and replacing it with the following:
(c) other Equipment and Fixtures having a value not exceeding $100,000
in any single transaction or $250,000 in the aggregate in any Fiscal Year
for all Credit Parties; and
(k) the last paragraph of Section 6.8 of the Credit Agreement is hereby
amended by deleting it in its entirety and replacing it with the following:
With respect to any disposition of assets or other properties
permitted pursuant to clause p,) and clause (c) above, Lender agrees on
reasonable prior written notice to release its Lien on such assets or other
properties in order to permit the applicable Credit Party to effect such
disposition and shall execute and deliver to Borrower Representative, at
Borrowers' expense, appropriate UCC-3 termination statements and other
releases as reasonably requested by Borrower Representative.
(l) Section 6.14(d) of the Credit Agreement is hereby amended by deleting
it in its entirety and replacing it with the following:
(d) regularly scheduled payments of principal and interest with
respect to the Subordinated Debt in accordance with the terms of the
Subordination Agreement or other agreement related to such Subordinated
Debt;
3. Amendment of Annexes to Credit Agreement.
(a) Annex A to the Credit Agreement is hereby amended by adding the
following definitions in their proper alphabetical order:
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"Intercreditor Agreement" shall mean that certain agreement, dated as
of April 22, 1998, between B & I Lending, LLC and Lender, as the same may
hereafter be amended, restated, modified or otherwise supplemented from
time to time.
"Interest Coverage Ratio" shall mean the ratio of EBITDA to Interest
Expense.
"Interest Expense" shall mean, for any applicable fiscal period, the
aggregate of all interest paid in cash by the Borrowers and their
Subsidiaries on a consolidated basis during such fiscal period including
interest paid with respect to the Obligations.
"Net Worth" shall mean, at any date of determination, the consolidated
stockholders' equity of Ringer and its Subsidiaries.
"SRI Acquisition Agreement" shall mean that certain Agreement and Plan
of Merger, dated as of October 3, 1997, by and among SRI, SRI Acquisition
Corp. and Ringer, together with all schedules and exhibits related thereto,
as the same may have been heretofore or may hereafter be amended, restated,
modified or otherwise supplemented from time to time.
"SRI Guarantee" shall mean the Guarantee, dated as of April 22, 1998,
executed by SRI in favor of Lender.
"SRI Pledge Agreement" shall mean the Pledge Agreement, dated as of
April 22, 1998, executed by SRI in favor of Lender, pledging the Stock of
SureCo and all Intercompany Notes owing to or held by it.
"SRI Transaction" shall mean the acquisition by Ringer pursuant to the
SRI Acquisition Agreement of all of the stock of SRI and its Subsidiaries.
"SureCo" shall mean SureCo, Inc., a Georgia corporation.
"SureCo Borrowing Base" shall mean, as of any date of determination by
Lender, from time to time, an amount equal to the sum at such time of:
(a) eighty-five percent (85%) of the Eligible Accounts of SureCo,
less any Reserves established by Lender at such time; and
(b) (i) for any Revolving Credit Advance occurring during the months
of July through November of any Fiscal year, sixty percent (60%) of the
book value of the Eligible Inventory of SureCo, and (ii) for any Revolving
Credit Advance occurring during the months of January through June or the
month of December of any Fiscal Year, sixty-five percent (65%) of the book
value of the Eligible Inventory of SureCo; the book value of Eligible
Inventory shall be valued on a first-in, first-out basis (at the lower of
cost or market), less any Reserves established by Lender at such time.
"SureCo Notes" shall mean, collectively, (a) that certain Term Note,
dated August 21, 1997, in the original principal amount of $1,650,000
issued by SureCo in favor of B&I Lending, LLC, (b) that certain Demand
Promissory Note, dated July 31, 1997, in the aggregate original principal
amount of $1,044,479 issued by SRI in favor of Xxxxxxxx X. Law, and (c)
that certain promissory note, dated
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December 14, 1994, in the original principal amount of $140,525 issued by
SRI in favor of First Liberty Bank f/k/a Middle Georgia Bank.
"SureCo Security Agreement" shall mean the Security Agreement, dated
as of April 22, 1998, entered into between Lender and SureCo.
(b) Annex A to the Credit Agreement is hereby amended by deleting the
definitions of "Aggregate Borrowing Base", "Borrowing Base", "Collateral
Documents", and "Pledge Agreements" and replacing such definitions with the
following:
"Aggregate Borrowing Base" shall mean, as of any date of
determination, an amount equal to the sum of the Ringer Borrowing Base, the
Safer Borrowing Base and the SureCo Borrowing Base and, following the
consummation of any Permitted Acquisition in which the Target acquired
therein (or any Subsidiary of the Target) becomes a Subsidiary of Ringer
and a Borrower in accordance with the terms of the Agreement, the Target
Borrowing Base of such Person.
"Borrowing Base" shall mean, as the context may require, the Ringer
Borrowing Base, the Safer Borrowing Base and the SureCo Borrowing Base and,
following the consummation of any Permitted Acquisition in which the Target
acquired therein (or any Subsidiary of the Target) becomes a Subsidiary of
Ringer and a Borrower in accordance with the terms of the Agreement, the
Target Borrowing Base of such Person, or any such Borrowing Base.
"Collateral Documents" shall mean the Security Agreement, the Safer
Canada Security Agreement, the SureCo Security Agreement, the Pledge
Agreements, the Guaranties, the Patent Security Agreements, the Trademark
Security Agreements, the Copyright Security Agreements and all similar
agreements entered into guaranteeing payment of, or granting a Lien upon
property as security for payment of, the Obligations.
"Pledge Agreements" shall mean, collectively, the Ringer Pledge
Agreement, the Safer Pledge Agreement, the SRI Pledge Agreement and any
pledge agreements entered into after the Closing Date by any Credit Party
(as required by the Agreement or any other Loan Document).
(c) Annex A to the Credit Agreement is hereby amended by deleting the
definition of "Tangible Net Worth" in its entirety.
(d) Annex G to the Credit Agreement is hereby deleted in its entirety and
replaced with the attached Annex G.
(e) Annex H to the Credit Agreement is hereby deleted in its entirety and
replaced with the attached Annex H.
4. Representations and Warranties of Borrower. In order to induce Lender
to enter into this Amendment, Borrowers hereby jointly and severally represent
and warrant to Lender that:
(a) No Default. After giving effect to this Amendment, no Default or Event
of Default has occurred and is continuing;
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(b) Representations and Warranties. After giving effect to this Amendment,
all of the representations and warranties of Borrowers contained in the Loan
Documents are true, accurate and complete in all respects on and as of the date
hereof to the same extent as though made on and as of the date hereof; and
(c) Authorization. etc. Each Borrower has the power and authority to
execute, deliver and perform this Amendment. Each Borrower has taken all
necessary action (including, without limitation, obtaining approval of its
stockholders, if necessary) to authorize its execution, delivery and performance
of this Amendment. No consent, approval or authorization of, or declaration or
filing with, any Governmental Authority, and no consent of any other Person, is
required in connection with any Borrower's execution, delivery and performance
of this Amendment, except for those already duly obtained. This Amendment has
been duly executed and delivered by each Borrower and constitutes the legal,
valid and binding obligation of each Borrower, enforceable against it in
accordance with its terms. Each Borrowers execution, delivery and performance of
this Amendment does not conflict with, or constitute a violation or breach of;
or constitute a default under, or result in the creation or imposition of any
Lien upon the property of such Borrower by reason of the terms of (a) any
contract, mortgage, lease, agreement, indenture or instrument to which any
Borrower is a party or which is binding upon it, (b) any law or regulation or
order or decree of any court applicable to any Borrower, or (c) the certificate
or articles of incorporation or by-laws of any Borrower.
5. Conditions to Effectiveness. The effectiveness of this Amendment is
expressly conditioned upon the satisfaction of each condition set forth in this
Section 5 and the delivery of the following documents to Lender on or prior to
the date hereof (unless another date shall be specified) and consummation of all
of the transactions contemplated by each such document, all in form and
substance acceptable to Lender in its sole and absolute discretion:
(a) Documentation. Borrowers shall have delivered to Lender all of the
following documents:
(i) Amendment. Duly executed originals of this Amendment.
(ii) Disclosure Schedules. Disclosure Schedule 6.6~and other revised
Disclosure Schedules to the extent necessary to comply with Section 5.6 of
the Loan Agreement.
(iii) Revolving Note. A Revolving Note executed by SureCo in the
aggregate principal amount of Twenty Five Million Dollars ($25,000,000)
payable to Lender.
(iv) Ringer Pledge Agreement. Duly executed originals of an amendment
to the Ringer Pledge Agreement, accompanied by (a) share certificates
representing all of the outstanding Stock of SRI and undated stock powers
for such share certificates executed in blank and (b) the original
Intercompany Notes of SureCo in favor of Ringer, duly endorsed in blank.
(v) SRI Guaranty. Duly executed originals of the SRI Guaranty.
(vi) SRI Pledge Agreement. Duly executed originals of the SRI Pledge
Agreement, accompanied by share certificates representing all of the
outstanding Stock being pledged pursuant to such Pledge Agreement and
undated stock powers for such share certificates executed in blank.
(vii) SureCo Security Agreement. Duly executed originals of the SureCo
Security Agreement.
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(viii) Insurance. Satisfactory evidence that the insurance policies of
SRI and its Subsidiaries required by Section 5.4 of the Credit Agreement
are in full force and effect and, within five (5) days after the date
hereof, appropriate evidence showing loss payable and/or additional insured
clauses or endorsements, as requested by Lender in favor of Lender.
(ix) Security Interests and Code Filings. (a) Evidence satisfactory
to Lender that Lender has a valid and perfected first priority security
interest in the Collateral of the Borrowers, including (i) such documents
duly executed by the Borrowers (including financing statements and
amendments thereto under the Code and other applicable documents under the
laws of any jurisdiction with respect to the perfection. of Liens) as
Lender may request in order to perfect its security interests in such
Collateral and (ii) copies of Code search reports listing all effective
financing statements that name SureCo or SRI as debtor, together with
copies of such financing statements, none of which shall cover the
Collateral, except for those relating to the Fremont Loan (all of which
shall be terminated on the Closing Date) and Permitted Encumbrances.
(b) Evidence satisfactory to Lender, including copies, of all UCC1 and
other financing statements filed in favor of SureCo with respect to each
location, if any, at which Inventory may be consigned.
(x) Payoff Letters: Termination Statements: Releases. Payoff letters
from Fremont Financial Corp. and Xxxxxx-Xxxxx Company, respectively, itemizing
amounts of principal, interest, fees, expenses or other amounts payable to it;
UCC-3 or other appropriate termination statements and mortgage releases,
executed by Fremont Financial Corp. and Xxxxxx-Xxxxx Company, as applicable,
releasing all Liens of such Person upon any of the personal property of SRI and
its Subsidiaries, and termination of all blocked account agreements, bank agency
agreements or other similar agreements or arrangements in favor of such Person
or relating to the loans.
(xi) Intellectual Property Security Agreement. Duly executed originals of
a Trademark Security Agreement, dated the date hereof and signed by SureCo,
together with all instruments, documents and agreements executed pursuant
thereto.
(xii) Power of Attorney. Originals of the Power of Attorney executed by
SureCo.
(xiii) Borrowing Base Certificate. Duly executed originals of a Borrowing
Base Certificate from each Borrower, dated the dated hereof, reflecting
information concerning Eligible Accounts and Eligible Inventory of such
Borrower.
(xiv) Letter of Direction. Duly executed originals of a letter of
direction from Borrower Representative addressed to Lender with respect to the
disbursement on the date hereof of the proceeds of any Revolving Credit Advance.
(xv) Cash Management System: Blocked Account Agreements. Evidence
satisfactory to Lender that, within ten (10) days after the date hereof Cash
Management Systems with respect to SureCo complying with Annex C to the
Agreement have been established and are currently being maintained in the manner
set forth in such Annex C, together with copies of duly executed tri -parry
blocked account and lock box agreements, satisfactory to Lender, with the banks
as required by Annex C; provided that until such time as such agreements are
executed, SureCo shall direct SunTrust Bank on a daily basis to wire transfer
available funds in all SunTrust Bank accounts of SureCo to the Collection
Account.
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(xvi) Charter and Good Standing. For each of SRI and its Subsidiaries,
such Person's (a) charter and all amendments thereto, (b) good standing
certificates in its state of incorporation and (c) good standing certificates
and certificates of qualification to conduct business in each jurisdiction where
its ownership or lease of property or the conduct of its business requires such
qualification, each dated a recent date prior to the date hereof and certified
by the applicable Secretary of State or other authorized Governmental Authority.
(xvii) Bylaws and Resolutions. For each of Ringer and its Subsidiaries, (a)
such Person's bylaws, together with all amendments thereto and (b) resolutions
of such Person's Board of Directors (and shareholders, if necessary), approving
and authorizing the execution, delivery and performance of the Loan Documents to
which such Person is a party and the transactions to be consummated in
connection therewith, each certified as of the date hereof by such Person's
corporate secretary or an assistant secretary as being in full force and effect
without any modification or amendment.
(xviii) Incumbency Certificates. For each of Ringer and its Subsidiaries,
signature and incumbency certificates of the officers of each such Person
executing any of the Loan Documents, certified as of the date hereof by such
Person's corporate secretary or an assistant secretary as being true, accurate,
correct and complete.
(xix) Opinion of Counsel. Duly executed originals of opinions of Xxxxxx &
Xxxxxxx LLP, counsel for the Credit Parties, and Cushing, Morris, Xxxxxxxxxx &
Xxxxx, LLP, Georgia counsel for the Credit Parties, each dated the date hereof,
and accompanied by a letter addressed to such counsel from Ringer and its
Subsidiaries, authorizing and directing such counsel to address its opinion to
Lender and to include in such opinion an express statement to the effect that
Lender is authorized to rely on such opinion.
(xx) Appointment of Agent for Service. An appointment of CT Corporation
as agent for service of process for SRI and SureCo.
(xxi) Waivers. Duly executed originals of landlord waivers and consents and
bailee letters with respect to SureCo, in each case as required pursuant to
Section 5.9.
(xxii) Law Agreement Originals of a duly executed Intercreditor agreement
with respect to the SureCo Note issued in favor of Xxxxxxxx Xxx, together with a
copy of such SureCo Note.
(xxiii) Intercreditor Agreement. Duly executed originals of the
Intercreditor Agreement.
(xxiv) Other Documents. All other documents, certificates and agreements as
the Lender may reasonably request to accomplish the purposes of this Amendment.
(b) No Default. As of the date hereof after giving effect to this
Amendment, no Default or Event of Default shall have occurred and be continuing.
(c) Warranties and Representations. After giving effect to this Amendment,
all of the warranties and representations of Borrowers contained in the Credit
Agreement and the other Loan Documents (including, without limitation, this
Amendment) shall be true and correct in all material respects to the same extent
as though made on and as of the date hereof.
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(d) Consents and Acknowledgments. Borrowers shall have obtained all
consents, approvals and acknowledgments which may be required with respect to
the execution, delivery and performance of this Amendment.
(e) Fees Costs and Expenses. Lender shall have received payment of (a) an
amendment fee of $25,000, and (b) all other fees, costs and expenses, including,
without limitation, reasonable attorneys' fees and expenses invoiced to Borrower
Representative and as otherwise due pursuant to the Loan Documents, incurred by
Lender in connection herewith.
6. Reference to and Effect on Loan Documents.
6.1 Ratification. Except as specifically amended above, the Credit
Agreement and the other Loan Documents shall remain in full force and effect and
each Borrower hereby ratifies and confirms each such Loan Document.
6.2 No Waiver. The execution, delivery and effectiveness of this Amendment
shall not operate as a waiver of any right, power or remedy of Lender under the
Credit Agreement or any of the other Loan Documents, or, except as expressly
provided herein, constitute a consent, waiver or modification with respect to
any provision of the Credit Agreement or any of the other Loan Documents. Upon
the effectiveness of this Amendment each reference in (a) the Credit Agreement
to "this Agreement," "hereunder," "hereof," or words of similar import and ~)
any other Loan Document to "the Agreement" shall, in each case and except as
otherwise specifically stated therein, mean and be a reference to the Credit
Agreement as amended hereby.
7 Affirmation of Subsidiary Guarantee.
Safer Canada (i) consents to and approves the execution and delivery of
this Amendment by Borrowers and Lender, (ii) agrees that this Amendment does not
and shall not limit or diminish in any manner its obligations under the
Subsidiary Guarantee or under any of the other Loan Documents executed and/or
delivered by it in connection therewith, (iii) agrees that this Amendment shall
not be construed as requiring the consent of Safer Canada in any other
circumstance, (iv) reaffirms its obligations under the Subsidiary Guarantee and
all of the other Loan Documents to which it is a party, and (v) agrees that the
Subsidiary Guarantee and such other Loan Documents remain in full force and
effect and are each hereby ratified and confirmed.
8. Miscellaneous.
8.1 Successors and Assigns. This Amendment shall be binding on and shall
inure to the benefit of Borrowers, Lender and their respective successors and
assigns, except as otherwise provided herein or therein. The terms and
provisions of this Amendment are for the purpose of defining the relative rights
and obligations of Borrowers and Lender with respect to the transactions
contemplated hereby and there shall be no third party beneficiaries of any of
the terms and provisions of this Amendment.
8.2 Entire Agreement. This Amendment, including all schedules and other
documents attached hereto or incorporated by reference herein or delivered in
connection herewith, constitutes the entire agreement of the parties with
respect to the subject matter hereof and supersedes all other understandings,
oral or written, with respect to the subject matter hereof.
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8.3 Fees and Expenses. As provided in Section 11.3 of the Credit
Agreement, Borrowers agree to pay on demand all fees, costs and expenses
incurred by the Lender in connection with the preparation, execution and
delivery of this Amendment.
8.4 Headings. Section headings in this Amendment are included herein for
convenience of reference only and shall not constitute a part of this Amendment
for any other purpose.
8.5 Severability. Wherever possible, each provision of this Amendment
shall be interpreted in such a manner as to be effective and valid under
applicable law, but if any provision of this Amendment shall be prohibited by or
invalid under applicable law, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Amendment.
8.6 Conflict of Terms. Except as otherwise provided in this Amendment, if
any provision contained in this Amendment is in conflict with, or inconsistent
with, any provision in any of the other Loan Documents, the provision contained
in this Amendment shall govern and control.
8.7 Counterparts. This Amendment may be executed in any number of separate
counterparts, each of which shall collectively and separately constitute one
agreement. Delivery of an executed counterpart of a signature page to this
Amendment by telecopy shall be effective as delivery of a manually executed
counterpart of this Amendment.
8.8 incorporation of Loan and Security Agreement. The provisions contained
in Sections 11.9 and 11.13 of the Credit Agreement are incorporated herein by
reference to the same extent as if reproduced herein in their entirety.
8.9 Acknowledgrnent. Each Credit Party hereby represents and warrants that
there are no liabilities, claims, suits, debts, liens, losses, causes of action,
demands, rights, damages or costs, or expenses of any kind, character or nature
whatsoever, known or unknown, fixed or contingent (collectively, the "Claims"),
which any Credit Party may have or claim to have against Lender, or any of their
respective affiliates, agents, employees, officers, directors, representatives,
attorneys, successors and assigns (collectively, the "Lender Released Parties"),
which might arise out of or be connected with any act of commission or omission
of the Lender Released Parties existing or occurring on or prior to the date of
this Amendment, including, without limitation, any Claims arising with respect
to the Obligations or any Loan Documents. In furtherance of the foregoing, each
Credit Party hereby releases, acquits and forever discharges the Lender Released
Parties from any and all Claims that any Credit Party may have or claim to have,
relating to or arising out of or in connection with the Obligations or any Loan
Documents or any other agreement or transaction contemplated thereby or any
action taken in connection therewith from the beginning of time up to and
including the date of the execution and delivery of this Amendment. Each Credit
Party further agrees forever to refrain from commencing, instituting or
prosecuting any lawsuit, action or other proceeding against any Lender Released
Parties with respect to any and all Claims.
(Signature page follows)
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IN WITNESS WHEREOF, this Second Amendment to Loan and Security Agreement has
been duly executed as of the date first written above.
RINGER CORPORATION
By: /S/ Xxxx Xxxxxxxxxxx
---------------------
Title: Executive Vice President & CFO
-------------------------------
SAFER, INC.
By: /S/ Xxxx Xxxxxxxxxxx
---------------------
Title: Executive Vice President & CFO
-------------------------------
SURECO, I NC.
By: /S/ Xxxx Xxxxxxxxxxx
---------------------
Title: Executive Vice President & CFO
-------------------------------
GENERAL ELECTRIC CAPITAL CORPORATION, as Lender
By: /S/ Xxxxxx X. Xxxxx
---------------------
Title: Duly Authorized Signatory
--------------------------
Each of the following Persons is a signatory to this Amendment in its
capacity as a Credit Party and not as a Borrower.
SAFER, INC.
By: /S/ Xxxx Xxxxxxxxxxx
---------------------
Title: Executive Vice President & CFO
-------------------------------
SOUTHERN RESOURCES, INC.
By: /S/ Xxxx Xxxxxxxxxxx
---------------------
Title: Executive Vice President & CFO
-------------------------------
12